Eyes Wide Open: Justice Powell's Concerns About Eminent Domain Abuse

by Timothy Sandefur

Prof. Ben Barros has a fascinating post on his PropertyProf Blog about Hawaii Housing v. Midkiff, the case that presaged the Kelo decision. In her dissent in Kelo, Justice O'Connor took pains to say that Midkiff (which she wrote) hadn't really meant what it said, namely that govenrment can take property for virtually any reason it wants. Justice Powell, however, wrote a memo to Justice O'Connor back in 1984, when Midkiff was being written that makes it clear that the Court knew what it was doing in the Midkiff case. "[W]e may regret language that could encourage Congress and state legislatures to justify taking private property for any perceived social evil," warned Justice Powell. Alas, his views did not prevail. As I've noted many times before, Justice O'Connor's attept to justify Midkiff while at the same time not going along with Kelo was not her most intellectually honest moment.